If you prevent illegal aliens from getting jobs or receiving taxpayer-subsidized benefits, and you routinely enforce the law, illegal aliens will, as Mitt Romney and others have said, “self-deport.” Even without full-implementation, illegal aliens know that they are not welcome in Arizona and the strategy is working.
Ultimately, the federal government must do its job by securing the border, cracking down on employers of those here illegally and vigorously enforcing the laws already on the books in cooperation with local law enforcement. The 360,000 illegal aliens remaining in Arizona are a constant reminder that the problem has not been entirely solved and that the courts need to take the handcuffs off of law enforcement and allow them to enforce SB1070.
Even President Obama has acknowledged that SB1070 was a result of “our failure to act responsibly at the federal level.” The issue before court is not whether the law is effective but whether it is constitutional. I view the issue simply. The 10th Amendment states that all powers not prohibited to the states are reserved to the states, and I cannot see any word of text in the Constitution denying states the right to use their police power to inquire into the status of illegal aliens.
However, I recognize that the courts do not view the issue as straightforward. For that reason, I worked with former Justice Department official and Yale Law Journal editor Kris Kobach to craft the bill in line with recent court precedent on immigration. In 2002, the DOJ issued a memo that states had “inherent power” to enforce federal immigration law. The memo cited numerous cases, such as Gonzales v. Peoria, which said states may arrest individuals when there is “probable cause to believe [they committed] illegal entry.”
While much is made of the fact that SB1070 requires police to look into the immigration status of those it has a “reasonable suspicion” will be here illegally, the Supreme Court ruled in Muehler v. Mena, that police can do so even without reasonable suspicion. Despite the claims of racial profiling, the law specifically bars law enforcement considering "race, color or national origin.”
Last year the Supreme Court upheld LAWA 5-3 in Whiting v. Arizona. While LAWA was not as well known as SB1070, in some ways it is further reaching. SB1070 mirrors federal regulations, while LAWA requires businesses to use E-Verify, which they were not already required to do nationally.
Based on this decision, along with the fact that the Constitution, precedent, and the American people are on our side, I am cautiously optimistic that the court will uphold SB1070.